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January 10, 2025 14 mins
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Episode Transcript

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Speaker 1 (00:00):
I am so pleased to be joined by Ilia Shapiro,
who is a senior fellow at the Manhattan Institute and
direct Constitutional Studies at the Manhattan Institute, which is a
great organization. By the way, if you don't know the
Manhattan Institute and their magazine, City Journal, you should know.
City Journal is a wonderful publication and the.

Speaker 2 (00:21):
Reason for decades. And I've only worked there for a
couple of years. So yeah, there you go.

Speaker 1 (00:25):
So part of the reason, the reason I want to
have Ilia here today He's been a guest on the
show many times in the past, is because there was
a hearing at the Supreme Court of the United States
today about whether to hit the pause button on.

Speaker 3 (00:40):
Banning TikTok. Basically, there was a law that passed that
gave Byte.

Speaker 1 (00:45):
Dance, the parent company of TikTok, two choices. One is
sell TikTok to a non Chinese owner. The other is
have it banned in the United States of America. And
that law was passed with an implementing date the day
before Donald tru the next president, who now turns out
to be Donald Trump, the day before the inauguration.

Speaker 3 (01:05):
I'm sure that day was not an accident.

Speaker 1 (01:07):
Donald Trump was in favor of banning TikTok until he wasn't.
We won't get into all that right now, Ilia is
better than to anybody I know, listening to Supreme Court
arguments and interpreting them and putting them in some kind
of plain English for us. So, Ilia, did you have
a chance to listen to the actual hearing today about TikTok.

Speaker 4 (01:30):
I listened to almost all of it.

Speaker 2 (01:31):
Yeah, And this is it was an unusual process. TikTok
asked for the Supreme Court to get involved very quickly
before this January nineteenth dropped dead date because the lower court,
the DC Circuit, with judges appointed by different presidents Reagan, Obama, Trump,

(01:52):
all agreeing that this law was constitutional, was not an
infringement of the First Amendment, which is what TikTok and
Byte Dance are arguing that this violates the First Amendment,
and the Supreme Court set it for expedited briefing. All
the lawyers had to work over the Christmas holidays and
then this argument today. Very quick, unusual process, but it
was an excellent argument, very high level, and the case

(02:14):
will turned. There was very little surprising at the hearing
today which lasted about two and a half hours. It'll
turn on whether indeed this requirement it's not a you know,
it's been mischaracterized as a law that bans TikTok.

Speaker 4 (02:27):
That's not right.

Speaker 2 (02:28):
It's whether this requirement that TikTok either is divested from
its Chinese para company or becomes inoperable in the US,
whether that indeed violates the First Amendment, or it's a
proper national security regulation, which is how the law was
intended and structured and passed in in a wide bipartisan

(02:51):
margin last spring.

Speaker 1 (02:53):
Okay, so much to follow up on there, So let's
start with the national security piece. I recently had Scott
Lindsey on the show, and I'm sure you know him
pretty well, and we were talking about Joe Biden torpedoing
the Nippon Steel US Steel deal based on a so
called national security concern. And one of the things that

(03:14):
I said that I thought would potentially be a big
hurdle to those companies suing the federal government is that
more often than not, although Scott says it's not universal,
but more often than not, federal courts.

Speaker 3 (03:27):
Don't want to be in.

Speaker 1 (03:28):
A position of second guessing the Executive branch on what's
a national security issue? So how do you think about
that in this case?

Speaker 2 (03:36):
Yeah, well, it's slightly different because communications are involved, and
the laws governing the FCC and its precursor organizations have
long had restrictions on foreign ownership of communications companies for
all sorts of reasons. It's like Mike Gallagher, the former
congressman from Wisconsin who's the primary author of this legislation,
wrote in The Wall Street Journal today, you know, think

(03:57):
about in the height of the Cold War, Nikita Krushev says,
will bury you, and then the Soviet Communist Party tries to.

Speaker 4 (04:04):
Buy ABC, CBS, et cetera. That would have been blocked.
And it's a similar thing here.

Speaker 2 (04:10):
The telling issue is that if TikTok were owned by
an American Jeff Yass, for example, a billionaire who's a
big investor in it, if he owned it, if he
controlled it, rather than the Chinese Communist Party, not a
single thing would have to be changed about how it
operates for it to be fully legal. So it's not

(04:31):
saying this kind of content we're restricting, or if your
algorithm is bad and you know, perverting kids' brains, or
something like that. That's a policy argument that could be
made about some other law. But this is purely about
the ownership and the concern that the Chinese Communist Party
controls ByteDance, which in turn controls TikTok. So you know,

(04:53):
quite a part about what the law might be, should be,
or how it should be changed. But these kinds of
regulatory environments, and whether Joe Biden was right in the
Nippon steelcase, I think he was wrong, but the law
authorized him to do that in that context a little
bit different again than with communications entities.

Speaker 1 (05:10):
Okay, So just to follow up on that, if if
the argument, then if it's true, and I agree with
you that it's true that if Byte Dance sold TikTok
TikTok to a non Chinese owner, then nothing about the
operations of TikTok.

Speaker 3 (05:30):
Would need to change.

Speaker 1 (05:32):
To me, the conclusion from that is that this isn't
a First Amendment case because they're not trying to change speech.
They're trying to prevent and I'm not saying this is
happening or not, I don't really know. They're trying to
prevent the Chinese Communist Party from being able to use
this platform. To manipulate American society. I guess if someone

(05:55):
wants to say there's a First Amendment right there for
the Chinese government to do that, they're welcome to try
to make that case.

Speaker 3 (06:00):
But I don't really see it as a First Amendment case.

Speaker 2 (06:03):
Yeah, that that was not The right to manipulate was
not brought up a argument this morning by Byte Dances lawyers.

Speaker 4 (06:11):
Yeah.

Speaker 2 (06:12):
I mean that's the way I see it, and I've
tried to present the case neutrally, but I you know,
I support the constitutionality of this law. It's you know,
it's not often that I support the Biden administration's position
on something, but I do here.

Speaker 4 (06:22):
But like I said, this was by partisan legislation.

Speaker 2 (06:24):
It has worked out in various ways in consultation with
various people, and this is.

Speaker 4 (06:31):
To me that that's the key thing.

Speaker 2 (06:32):
Since the operation does not change, and since Whyte Dance,
Frankly and TikTok have had nine months since this was
enacted in April to do something and they haven't. They've
spent all of their efforts on lobbying to try to
to try to block it, to try to stop it
in various ways. Rather than finding a suitable owner. And
that tells me that, you know, the Chinese Communist Party

(06:54):
does not want to take the billion dollars or whatever
it would be worth to sell it. They'd rather try
to fight for this control. And I think that's a
tell I really do. And even though you know my
former employer, my friends at the Cato Institute file de
brief supporting the challengers, I don't. I don't see this
as a speech issue, but you know who cares. At

(07:15):
the end of the day, what I think, based on
this morning's argument, if I had to bet, I would
bet the Supreme Court affirms the lower court and allows
this law to go into effect next week.

Speaker 1 (07:27):
I would think that too. But there's one other issue
I want to get to, and I wouldn't. I would
note for listeners, I imagine that a smaller percentage of
my audience uses TikTok than the overall percentage of people
in the United States who use TikTok. There's a wide
range of estimates on the number of American users of TikTok,
but it's probably somewhere in the neighborhood of one hundred

(07:50):
and fifty million, or I saw one place that said
one hundred and seventy million, which it would be a
kind of shocking number. That'd be more than half the country.

Speaker 4 (07:57):
That's big. That's like forty fifty percent of the American people.

Speaker 3 (08:00):
Yeah.

Speaker 4 (08:00):
I don't use it either.

Speaker 1 (08:01):
Yeah, I don't use even if it's quote unquote only
one hundred million, and it's not is more than that.

Speaker 3 (08:08):
This is an astonishingly.

Speaker 1 (08:10):
Big platform that a lot of people use to build
their businesses on, and that that's part of the reason
this has become such a thing. So Ilia Donald Trump
asked for the implementation of this to be delayed.

Speaker 3 (08:26):
Because he's about.

Speaker 1 (08:27):
To become president and he wants to see if he
can negotiate some kind of outcome. And putting aside the
fact that Donald Trump has flip flopped on the issue, uh,
you know, on the one hand, I understand why he
would want to make that argument, and he might even
be right that maybe he's the you know, the art
of the deal and he could do something. But the

(08:48):
bottom line, I think, tell me, legally, he's not president.

Speaker 3 (08:53):
The law is the law.

Speaker 1 (08:54):
The law says what it says, and I would think
that it would be kind of a danger.

Speaker 3 (09:00):
There's a thing for the Supreme Court to say.

Speaker 1 (09:01):
Yeah, we're going to put this law on hold because
some new dude is going to be president the next day.

Speaker 4 (09:09):
Yeah. Yeah.

Speaker 2 (09:10):
In effect, Trump is asking the court for a temporary
restraining order for policy reasons, that the policy might change,
what have you. There's no dispute over the law what
it says, that it goes into effect the nineteenth That's
why everyone's in such a rush to how the court decided.
I don't think the Court wants to be seen as

(09:31):
being political and just deferring to Donald Trump one way
or another. It's there's some discussion this morning at the
hearing about whether the Court even has the authority to
just stay the lower court ruling pending a potential change.
It's very speculative. I doubt they're going to go in
for that.

Speaker 1 (09:51):
So I think you said this already, but I'm going
to ask you to reiterate. If you were a betting man,
and you and I have made a wager in the past,
but I think you and I are on the same
side on this one. If you were a betting man,
would you bet that the Supreme Court says we are
not going to interfere here. The law says what the
law says, and we will follow.

Speaker 3 (10:11):
The and go ahead and follow the law.

Speaker 2 (10:14):
Yeah, I think it'll be a near unanimous, frankly affirments
of the lower Court allowing the law to take effect.
And I say this because the type of questioning from
justices across the jurisprudential spectrum were skeptical of the challenger's argument,
and they were they seemed to lean more in agreement

(10:35):
with what you and I are are.

Speaker 4 (10:39):
Coming to the conclusion here.

Speaker 2 (10:40):
Whether Justice Thomas, Chief Justice Roberts, Justice Katanji, Brown Jackson,
they all seem to see this as more of a
national security claim and a continuation of the sorts of
powers that the government has exercised in the past, rather
than attempt to control the algorithm or speech or restrict

(11:01):
the Americans access to speech things like this, And by
the way, I should.

Speaker 4 (11:04):
Add ross this is not the first time that.

Speaker 2 (11:11):
The government has asked for a divestiture or blocked things
like this. The Committee on Foreign Investment in the United
States SCIFIUS for short, just a few years ago, I
think four years ago, forced a Chinese company to sell
the gay dating app Grinder, and for that matter, TikTok
itself has been under an order for devestment since twenty

(11:34):
twenty by Syphius. Now that's not legislation and that it
never happened, and TikTok has been fighting that in various ways,
which is why Congress felt the need to act with
legislation as well.

Speaker 4 (11:45):
But yeah, if I were to put down a bet
I would.

Speaker 2 (11:48):
I'm comfortable saying that the court is likely to uphold
the law, and not by a five to four kind
of thing.

Speaker 4 (11:54):
I think it would be a big margin, perhaps a
narrow ruling, not like drawing a line.

Speaker 2 (12:01):
About what is a legitimate national security concern or not,
but just saying here, the government acted out of that concern,
not out of a concern that he didn't like certain
kind of speech.

Speaker 1 (12:10):
Right, And you know, Supreme Court justice has often surprised us.
But if I were a betting man, I would be
on the same side as you. Ilia Shapiro is a
senior fellow and director of Constitutional Studies at the Manhattan Institute.
You can go to Manhattan Dot Institute online, and seriously,
if you've never checked out their magazine City Journal, it's

(12:31):
fabulous and also.

Speaker 2 (12:33):
Ross my new book coming out next Oh yeah, law
is Lawless, Information of America's elites about the perversion of
the legal academy and the legal profession.

Speaker 3 (12:42):
Yeah, I'm sorry.

Speaker 1 (12:43):
I actually have that in my notes and I have
it in my blog with all the information about you.

Speaker 4 (12:48):
So.

Speaker 3 (12:48):
Ilia's book is coming out in four days.

Speaker 1 (12:50):
And actually, so just give me, give me twenty nine
seconds on this because I like, because I like prime numbers.

Speaker 3 (12:57):
It's got the I got the title Lawless.

Speaker 1 (13:00):
Just give me twenty nine seconds elaborating on the subtitle
the mis Education of American Elites.

Speaker 2 (13:07):
So, this book uses my experience with cancel culture at
Georgetown Law School as a jumping off point. It tells
my personal story but uses that to extrapolate to various
pathologies in higher education and specifically law schools. These are
problems of ideology with critical legal studies, critical theory, problems
of bureaucracy, the explosion of dei offices and non teaching staff,

(13:29):
and problems of leadership are the failures of the deans
and university presidents.

Speaker 3 (13:35):
Ilia's book is coming out in four days.

Speaker 1 (13:37):
It's called Lawless, The Miseducation of America's Elites.

Speaker 3 (13:41):
It's you can find it on Amazon. I linked to it.

Speaker 1 (13:44):
On my blog as well, so you could pre order
it today and you'll have it next week. Ilia Shapiro,
congrats on getting a book out of what those dillweeds
did to you.

Speaker 3 (13:56):
But you know it's their lass night.

Speaker 2 (13:58):
I believe that dillweed is a technic legal churma. I'll
have to explain that to your listeners later.

Speaker 3 (14:04):
Thanks so much for being Have a great weekend. All right.

Speaker 1 (14:06):
That's Eliot Shapiro from the Manhattan Institute

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